Perkins v. State, 57922

• Decision Date: 05 September 1979
• Docket Number: No. 57922,57922
• Citation: 151 Ga.App. 199,259 S.E.2d 193
• Parties: PERKINS v. The STATE.
• Court: Georgia Court of Appeals

Page 193

259 S.E.2d 193

151 Ga.App. 199

PERKINS v. The STATE.

No. 57922.

Court of Appeals of Georgia.

Submitted May 29, 1979.

Decided Sept. 5, 1979.

Adele P. Grubbs, Marietta, for appellant.

Herbert A. Rivers, Sol., for appellee.

CARLEY, Judge.

David T. Perkins was tried by a jury on October 2, 1978, on the charge of racing and contest of speed with another (Code Ann. § 68A-808(a)), a misdemeanor. The state called just one witness, the arresting officer, who testified that he was sitting in his police car near an intersection in Cobb County when two cars pulled up side by side at the red light. The appellant Perkins was in his 1965 Mustang convertible in the outside lane and a codefendant, David Allen, was in a 1973 Camaro in the inside lane. When the traffic light turned green, both cars started off. The lane in which Perkins was traveling terminated and he pulled in behind Allen's car. There was another stop light about three-tenths of a mile down the road and Perkins merged behind the Camaro in less than half that distance. The officer stated that both men were going over 45 miles an hour, which exceeded the speed limit, and were "laying drags," so he pulled them over and charged them with contest of speed. Both defendants denied speeding or racing and both claimed they did not know what they were charged with until they were given their citations. Neither defendant knew each other before the occurrence and the appellant had never before received a traffic citation.

The jury returned a verdict of guilty against Perkins who, enumerating 12 errors, appeals.

1. Perkins contends that the trial judge committed reversible error by placing the burden of proof upon him in her charge to the jury. The charge as given was as follows, the italicized portion being that to which objection is made:

"Jurors, to these accusations the defendants have entered their pleas of not guilty. I charge that the effect of such a plea is to place the burden of proving the burden upon the State of proving to you beyond a reasonable doubt the guilt of the defendants in this case, and that is the issue which you have for determination by your verdicts in this case . . .

"Jurors, the defendants enter into the trial of this case with the presumption of innocence in their favor, and that presumption remains with them throughout the trial unless and until it is overcome to your satisfaction beyond a reasonable doubt.

"I charge you that the burden is on the State to prove each and every allegation set out in the accusation, and that the State must carry this burden to your satisfaction beyond a reasonable doubt . . .

"I further charge you that when the guilt of the accused is made to appear beyond a reasonable doubt to the satisfaction of the jury, you are authorized to convict regardless of good character. Such evidence is to be weighed and considered by you, the jury, in connection with all the other evidence presented in this case . . .

"Jurors, the burden of proof in this criminal case rests upon the prosecution, and it remains there throughout the trial. This proof must satisfy you, the jury, of the defendants' guilt beyond a reasonable doubt; whereas in civil actions it is sufficient to prove the issues involved in those cases by what is known as a preponderance of the evidence. However, I charge you that if in a criminal prosecution it becomes necessary for the defendant to explain some fact or justify certain conduct, he does not have to do so beyond a reasonable doubt." (Emphasis supplied.)

This issue is controlled by the rule enunciated by the Supreme Court in State v. Moore, 237 Ga. 269, 270(1), 227 S.E.2d 241, 242 (1976), that after the final date of that decision "charges which place any burden of persuasion upon the defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error." Even where the defendant raises one of the affirmative defenses defined in Criminal Code Ch. 26-9 (i. e., justification, self-defense, entrapment, etc.), the burden of proof still rests entirely upon the state as it does with all other issues in the case. State v. Moore, 237 Ga. 269, 227 S.E.2d 241, supra.

Here Perkins did not raise an affirmative defense he simply denied committing the crime. But because the judge defined the burden of proof in civil cases as preponderance of the evidence immediately before stating that the defendant need not explain or justify his conduct beyond a reasonable doubt, the implications of the instructions objected to were that the defendant must meet that lesser standard of proof and, thus, that he bore some burden of persuasion. Even considering the charge as a whole, as we have done, this language was neither harmless nor invited, but was clearly burden-shifting; and since this case was tried after the date of final decision of State v. Moore, supra, it, therefore, constitutes reversible error. Cf. Davis v. State, 237 Ga. 279(1), 227 S.E.2d 249 (1976); Cowart v. State, 237 Ga. 282, 227 S.E.2d 248 (1976); Thornton v. State, 139 Ga.App. 483, 487(5), 228 S.E.2d 919 (1976).

2. Perkins next asserts that reversible error occurred when the trial judge charged the entire Code Ann. § 68A-808, including subsection (b) on drag racing, when the affidavit and accusation charged him only with operating an automobile "so as to race and otherwise engage in a contest of speed with another," as prohibited by subsection (a) and defined by subsection (c), thereby causing a fatal variance between the allegata and the probata.

Code Ann. § 68A-808 provides in pertinent part as follows:

"(a) No person shall drive any vehicle on a highway in this State in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, exhibition of speed or acceleration, or for the purpose of making a speed record, and no person shall in any manner participate in any such race, competition of speed, contest of speed, or test or exhibition of speed.

"(b) Drag race is defined as the operation of two or more vehicles from a point side by side at accelerated speeds in a competitive attempt to outdistance each other, or the operation of one or more vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such vehicle or vehicles within a certain distance or time limit.

"(c) Racing is defined as the use of one or more vehicles in an attempt to outgain, outdistance, or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long distance driving routes."

The state insists that subsections (b) and (c) are not mutually exclusive and that, therefore, the rationale of our recent whole court decision in Walker v. State, 146 Ga.App. 237, 243(2), 246 S.E.2d 206 (1978), is not controlling. In that case the defendant was indicted for committing theft by wrongfully taking property under Criminal Code § 26-1802(a), but the judge charged the entire section defining the offense of theft by taking stating that it could also be proved by showing unlawful appropriation of property of another of which the defendant had lawful possession. This court reversed, holding that by charging both definitions of the crime, the judge "could have misled the jury into the false belief that they could convict the defendant if Either of the alternative methods was established by the evidence. This was followed by the specific charge that the jury could convict the defendant if he 'intentionally withheld' the property from the owner. An instruction to a jury can be misleading 'where it gives several definitions of the offense for which accused is being tried . . .' (Cit.) However, it need not be fatal where a court charges the general statute on different modes of commission 'provided a definition is subsequently given applicable to the pleadings and the evidence.' (Cit.) We have no remedial instructions in this instance. And, when it is combined with the subsequent charge, which is based upon a ground not charged in the indictment, it cannot be said as a matter of law that it was not misleading. 'It is reversible error for the court to submit a case to the jury upon a theory entirely different from that claimed in the (indictment) . . .' (Cits.) . . .

"In criminal prosecutions the court's instructions to the jury must be tailored to fit the charge in the indictment and the evidence admitted at trial. (Cits.) This is particularly true when the offense charged may be committed in one of several ways, but the indictment charges one specific method. Accordingly, the instructions were erroneous as a matter of law, and because the defendant was indicted by the grand jury for unlawfully taking the property alleged but instructions by the court permitted the defendant to be convicted on proof of 'unlawful appropriation' by 'intentionally withholding' the property, there is a fatal variance of proof from the indictment returned by the grand jury. (Cits.)" Walker v. State, supra, 243-244, 246 S.E.2d 211.

We conclude that races and contests of speed are likewise separate offenses under Code Ann. § 68A-808 from drag racing. Racing or contest of speed involves one or more vehicles in an attempt to outdistance, prevent from passing or arrive at a given destination first, or to test stamina over a long distance course. Drag racing requires two or more vehicles starting side by side at accelerated speeds to compare speed or power of acceleration within a certain distance or time limit. Under the facts of the present case some facets of both definitions were applicable, but the defendants were charged only with racing under subsection (c). Appellant and his co-defendant were side by side at the red light and left it together when it turned...